Graham v Police - [2025] NZHC 806

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2025-488-000015

[2025] NZHC 806

BETWEEN
JOSEPH PAUL GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 March 2025

Counsel:

S Litt for Appellant

JP Hamber for Respondent

Judgment:

8 April 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 8 April 2025 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Whangarei. S-L Litt, Paihia.

GRAHAM v POLICE [2025] NZHC 806 [8 April 2025]

The appeal

[1] Joseph Graham received a sentence of two years and four months’ imprisonment for injuring a Police officer with reckless disregard for his safety.1 Mr Graham appeals that sentence. The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The test is typically expressed as whether the sentence is manifestly excessive.3

Background

[2]Judge G L Davis helpfully captured the offending at sentencing:

[1] … The victim of this offending is a serving New Zealand police officer, and he was assaulted while dealing with a vehicle collision involving a pedestrian. The pedestrian is Mr Graham’s brother.

[2] At about half-past 12 in the morning of 23 June [2024] the victim was an incident controller for the serious crash on State Highway 10. The road had been closed as a result of the collision and cordons were managed by the fire service. The pedestrian was being treated inside an ambulance with the back doors partially open. Mr Graham and his brother arrived at the scene with no t-shirts on, they forced their way through the fire service cordons. [Another Constable] was in attendance and told them to stop and they barged passed her and made their way towards the ambulance. As Mr Graham approached the ambulance he was aggressively yelling about his brother, abusing police staff, and calling them “pigs”.

[3] The victim was concerned that Mr Graham and his brother were going to enter the ambulance and interfere with the treatment of the patient and told the ambulance staff to close their doors. Mr Graham approached the victim who had his back to the rear doors of the ambulance and without warning punched him in the face with a closed right fist. The victim did not see the punch coming nor had a chance to defend himself. He was immediately rendered unconscious due to the force of the punch, fell on to the ground hitting his head on the ambulance door as he dropped.

[4] Mr Graham got into the ambulance and was removed by three police officers. He and his brother had a physical fight and OC pepper spray was deployed. The victim was still unconscious on the ground beside the ambulance and was picked up by a member of the fire service.

[5]Mr Graham was subsequently arrested.

[6] The victim was hospitalised, received a laceration to his head and required three stiches, concussion, swelling and bruising to his head behind

1 Police v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 806
Decision Date: 8 April 2025

CaseChat Overview and Summary

Joseph Graham appealed his sentence of two years and four months’ imprisonment for injuring a police officer with reckless disregard for the officer's safety. The appeal hinges on the assessment of the severity of the sentence imposed by the sentencing judge, specifically whether the starting point was correctly determined. Graham’s legal representative, Ms Litt, argued that the starting point should have been lower, claiming that the judge erred in assessing the aggravating factors and band placement.

The legal issues centred on the appropriate band for the starting point of the sentence, as outlined in Nuku v R, and whether the judge correctly identified the aggravating factors. The judge had identified four aggravating factors: serious injury, an attack on a public official in the execution of duty, an attack to the head, and the victim being in a situationally vulnerable position. Ms Litt argued that the attack to the head was not as severe as the judge perceived, and that the victim's lack of anticipation should not be considered a separate aggravating factor. The court found that while the argument about victim vulnerability had merit, the combination of the remaining aggravating factors justified the starting point within band three, as upheld by precedent.

The court found that the judge's assessment of the aggravating factors was correct, and despite the identified error in considering the victim's lack of anticipation as a separate aggravating factor, the overall sentence was not manifestly excessive. The combination of the remaining factors warranted a starting point within band three, aligning with previous cases involving attacks on police officers in the execution of duty. Consequently, the appeal was dismissed.

The court orders that the appeal is dismissed, and the original sentence of two years and four months’ imprisonment stands.

Orders